On 26th April 2016 UCI announced the decision in the case of Ms Van Den Driessche.1 The summary facts recorded were that the Rider had been found at the UCI Cyclo-Cross World Championships in January 2016 to have used a bike which had concealed within it an electric motor operated by a Bluetooth switch beneath the handlebar tape. The device was discovered by magnetic resonance testing. The Rider was found to have violated arts 1.3.010 and 12.1.013bis of UCI Regulations (committing a “technological fraud”2) and suspended for 6 years with a fine of CHF 20,000, costs and the disqualification of her results from 11th October 2015.

This example is an illustration of the dynamic interaction between sports and technology. While technology has facilitated perfectly legitimate advantages - from equipment to medical treatments to nutrition – which have improved standards across sports; it has simultaneously opened up new means of cheating.

This two-part article examines the relationship between sport and technological advances in sports equipment, asking: is it cheating, or acceptable evolution? And where does the line lie? Part 1 looks at the UCI’s regulations in the context of a clear-cut case of cheating (as above), before considering more general examples of the use and adoption new technologies in sport that improve performance but are not considered to do so improperly.

Part 2 (available here) will reflect on how sports governing bodies may best seek to regulate and govern technological advances in equipment to set the line between permitted technological improvements and cheating. What underlying principles should they abide by? How should they draft their regulations? Who should they hold responsible for breaches? How should they be sanctioned, and how should the detection process work?

The UCI and Technological Fraud

Cheating in competition against the spirit and requirements of a sport’s rules is not without its history in cycling, and UCI is no stranger to the adverse publicity that cycling has attracted from, for example, blood doping.

The Van Den Driessche case sheds further unwanted focus on cheating in cycling and demonstrates the opening of a new front in the battle against corruption in sport and UCI’s approach and reaction to cheating in cycling by non-doping means.

UCI can hardly have attended the event in question with detectors for concealed motors unless it had concern that they were being used and ‘Technological Fraud’ is not a new issue. Indeed, the use of motors to power or assist the power in cycling has been the subject of rumour and concern for many years. UCI has addressed Technological Fraud since at least 2005 (when Article 1.3.10 was amended) but controversies and comment have followed blue riband events such as the Paris Roubaix 2010, the Vuelta a Espana 2014 and the Giro D’Italia in 2015.

It is no surprise therefore to UCI that ‘Technological Fraud’ is a problem it must confront and its does so in three ways.

First, by prohibiting the use of a technological innovation in cycling without prior consent of UCI.3 Second,4 by specifying the dimensions of a bike. Third, and unsurprisingly, the requirement that a bicycle be "propelled solely, through a chainset, by the legs… moving in a circular movement, without electric or other assistance"5

The UCI has equally made clear that ‘Technological Fraud’ is a matter that it will address with a minimum sanction. On 30th January 2015 the UCI amended its rules to bring in a minimum 6-month suspension for ‘Technological Fraud’.6

The broader issue across sports

Looking at the issue more generally, any sport that relies on equipment being used or carried by a participant is at risk of technology being developed and used to gain a competitive advantage. If the equipment is used by the participant to gain an advantage which is not foreseen or permitted under the rules of the sport or the spirit of the sport, then one may ask the question: is it cheating?

But what of innovation within the rules of sport? This is not cheating because it is not in breach of any rule but may be seen as questionable or against the so-called ‘spirit’ of a sport. For example, in motor sport, the Tyrell P34 car’s use of six wheels in the 1976 and 1977 Formula 1 (‘F1’) races gave that car a distinct advantage that was permissible under FIA Rules until 1983.9 six wheels was not cheating because the sport did not specify the number of wheels of a F1 car.

In swimming, FINA’s reaction to the LZR Racer swimsuits and other high tech all in one low drag body suits in 2008/2009 led to new rules being introduced to focus that sport’s achievements on the physical activity of the swimmers and not the swimsuits advantages.10

In both of these cases technology provided an advantage that the rules of the sport did not prohibit at the time of the innovation but that was then prohibited. The technological innovation was seen as legitimate for at least a period of time. Not least because innovation of itself is not considered wrong for sport and innovation within the rules of a sport is not necessarily to be discouraged - sport depends upon it to challenge and progress.

How should the balance be struck between innovation using technology and its prohibition?

Prosthetics and equipment are necessary in some para sports and in those para sports comes the need to define and specify the properties of the prosthetics and equipment to best limit the achievement of the participant to their physical abilities and not to the device they deploy to achieve them. This is a fascinating example and one that we’ll return to in Part 2 when analysing how sports should best address the issue.

Nor is technological innovation of itself bad for sport. Titanium golf clubs and dimpled golf balls have allowed faster, higher and stronger shots. Using synthetic strings in a racquet in place of ‘catgut’ is not cheating, nor is the composite frame.

The HANS (Head and Neck Support) device in motorsport and the helmet in cricket both protect the participant from injury without directly enhancing the performance of the sportsman, although a safer driver or batsman may be confident in their performance and improve their performance thereby.

As a final point, it is worth noting that technological innovation and the risk of its misuse is not necessarily linked to the use of equipment on the field of play, nor need it be external to the participant. Tommy John surgery,11 wherein a tendon is repaired by replacement in a pitcher’s arm, is a fine example of how novel surgical technique can prolong the playing life of a baseball pitcher. Surgical repair of ACL tears can be, and is, achieved with synthetic as well as tendon graft. So does the Tommy Jones surgery or ACL repair with carbon fibre amount to an unfair advantage and is that the test?

In Part 2 (available here) we will move on to discuss how sports governing bodies may best seek to regulate and govern technological advances in equipment to set the line between permitted technological improvements and cheating.

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Author

Louis is a Barrister practising from chambers at Outer Temple. He is expert in corruption and misfeasance in sport.

He has been a leading junior in sports law for over 10 years and has acted in many of the leading corruption and disciplinary cases before tribunals and the Courts. He is ranked for sport in the Legal 500, Chambers and Partners and has been awarded the Sports Law Lawyer of the Year in 2017, 2018 and 2019.

He regularly acts for and advises the British Horseracing Authority, the World Professional Billiards and Snooker Association, the Turf Club, the Greyhound Board of Great Britain, the Rugby Football Union, and the Badminton World Federation and for athletes and players in disciplinary cases and litigation arising therefrom.

He is a arbitrator and mediation and sits on the Judicial Panel of the Football Association and a member of the International Cricket Council’s anti-corruption unit oversight Group.